Apartment rights

Apartment rights

Apartment rights arise from the division of a building (or land) into a self-contained part. An apartment right is a share in the ownership of an entire piece of land or the entire building. Apartment rights are typically used by Owners' Associations (VVEs). Do you have any questions about apartment rights?

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of apartment rights. Contact us to discuss the possibilities.

Apartment rights within property law

Apartment ownership rights are one of the independent real rights under property law and are regulated in Book 5, Title 9 of the Dutch Civil Code. Pursuant to Article 5:106 of the Civil Code, an owner, leaseholder, or holder of a building right may divide a building with associated land into apartment ownership rights. An apartment ownership right comprises two elements: a share in the community (the building and the land) and the exclusive right of use of a private section, such as a dwelling, office space, business unit, or parking space. According to Article 5:117 of the Civil Code, the apartment ownership right is registered property that can be independently transferred, mortgaged, and encumbered. For our clients – from an international real estate fund to the baker purchasing business premises in a divided building – this means that their legal position is entirely determined by the division documents.

The deed of division and division drawing

The division is effected by a notarial deed of division which is registered in the public registers of the Land Registry (Article 5:109 of the Dutch Civil Code). The deed is accompanied by a division drawing indicating the boundaries of the private and common areas. Article 5:111 of the Dutch Civil Code prescribes what the deed of division must contain at a minimum: the cadastral designation, a description of the parts intended to be used as a separate entity, and the regulations. In the event of disputes regarding what constitutes a private area – such as a roof terrace, a storage unit, or an attic space – the deed of division is interpreted according to objective standards, in light of the entire content of the deed and the accompanying drawing. Our lawyers and legal experts advise on the drafting, reading, and interpretation of these documents and conduct proceedings when their interpretation is in dispute.

The division regulations and the Association of Owners

The division regulations lay down the mutual rights and obligations of the apartment owners. Article 5:112 of the Dutch Civil Code (BW) specifies the subjects the regulations must cover in any case, including the distribution of debts and costs, the annual operating account and contributions, the use and maintenance of the common areas, the insurance of the building, and the establishment of an Owners' Association (VvE). Many divisions align with model regulations. Every apartment owner is a member of the VvE by operation of law. The VvE manages the community, takes care of maintenance, and maintains a reserve fund for future maintenance expenses pursuant to Article 5:126 of the Dutch Civil Code (BW). We assist both VvE boards and individual owners, whether it concerns a small VvE of a few homes or a large mixed-use complex comprising shops, offices, and apartments.

Decision-making, nullity and annulment of HOA decisions

The meeting of owners is the highest body of the Owners' Association; pursuant to Article 5:125 of the Dutch Civil Code, it holds all powers not assigned to another body by law or the articles of association. Not every resolution is legally valid. A resolution that conflicts with the law or the deed of division is void pursuant to Article 2:14 of the Dutch Civil Code. A resolution that conflicts with reasonableness and fairness (Article 2:8 of the Dutch Civil Code) or with the regulations may be annulled by the sub-district court pursuant to Article 5:130 of the Dutch Civil Code. A short time limit applies in this regard: the request for annulment must be submitted within one month of the day on which the applicant became aware of the resolution. Due to this short time limit, prompt legal advice is essential. We assess the legal validity of resolutions and represent the party in the annulment proceedings before the sub-district court.

Amendment, sub-division and dissolution of the division

Plans for a roof extension, an addition, the merging of apartments, or adding a floor to a building often affect the property law situation and therefore require an amendment to the deed of division. Such an amendment generally requires the cooperation of all apartment owners, or a resolution of the general meeting with the qualified majority required by law or the regulations, as well as the consent of holders of limited rights and creditors holding attachments. If an owner or a third party wrongfully fails to cooperate, substitute authorization may be requested from the sub-district court pursuant to Article 5:121 of the Dutch Civil Code. Sub-division of an apartment right (Article 5:106 of the Dutch Civil Code) is permitted in principle, but the deed of division may set limits to this. The legal action to amend the division at the request of an owner is regulated in Article 5:144 of the Dutch Civil Code. We guide these processes from A to Z and litigate regarding substitute authorization where necessary.

Use, rental and disputes between owners

An apartment owner may use their private section themselves or rent it out. Pursuant to Article 5:120 of the Dutch Civil Code, a tenant is bound by the provisions of the regulations governing the use of the private section. In practice, disputes arise regarding short-term rentals, student housing, nuisance, the designation of commercial space as residential space, or the use of common areas such as terraces and parking spaces. Outstanding service charges and the liability of the Owners' Association board also regularly lead to conflicts. Our mixed teams of lawyers and (corporate) legal counsel provide preventative advice on regulations and usage, and act in negotiations and proceedings – for the international group with a real estate portfolio as well as for the individual owner.

Our approach to apartment rights

MKB Juristen works with mixed teams of lawyers and in-house counsel to ensure that both legal and business interests are served. We review deeds of division and regulations, guide division, amendment, and sub-division, advise Owners' Association boards and owners on decision-making, and conduct proceedings before the sub-district court. Our clients range from international corporations and listed companies to independent entrepreneurs and individual apartment owners. Would you like to know where you stand? Contact us for an initial consultation.